The Rokita Fiasco: Indiana’s Discipline Fight Tests the Reach of the Rush Court

Did former AG Curtis Hill get a slap on the writ by threatening to go public with Rush's prior child trafficking?

By Hoosier Enquirer Staff

INDIANAPOLIS — Indiana Attorney General Todd Rokita’s escalating fight with the state’s attorney-discipline establishment is becoming about considerably more than one Republican officeholder’s professional license. His turn to federal court puts a spotlight on the unusual concentration of authority the Indiana Supreme Court exercises over the lawyers who practice before it and raises a question that has simmered for years: What meaningful check exists when an Indiana lawyer contends that the disciplinary system itself has violated his constitutional rights?

That question takes on added significance under Chief Justice Loretta Rush. The Indiana Supreme Court establishes the rules governing attorney discipline, exercises ultimate disciplinary authority and oversees a system in which the Disciplinary Commission investigates and prosecutes alleged misconduct. Such arrangements aren't unusual among state judiciaries, and their existence doesn't establish wrongdoing by Rush or any other justice. Still, the Rokita confrontation provides an unusually public test of whether Indiana’s system contains sufficient safeguards against inconsistent or retaliatory use of that considerable power.

Rokita is asking a federal court to examine constitutional claims involving Indiana’s disciplinary machinery. Former Indiana attorney Doug Bernacchi spent years raising his own objections to the disciplinary process and ultimately found little relief in federal court. The cases aren't identical, but their differences—and any differences in how federal courts treat them—could provide an important measure of whether Indiana attorneys receive consistent access to constitutional review.

A Different Set of Rules

Indiana attorney discipline isn't an ordinary civil lawsuit. It operates primarily under Admission and Discipline Rule 23, a specialized framework governing investigations, complaints, hearings and Supreme Court review. Ordinary civil litigants operate under the Indiana Rules of Trial Procedure, with established procedures covering discovery, depositions, subpoenas, motions and the presentation of evidence.

That difference isn't inherently unconstitutional. States have broad authority to regulate lawyers, and the Constitution doesn't require disciplinary proceedings to reproduce every protection contained in ordinary civil-procedure rules. The relevant question is whether the system provides adequate due process: meaningful notice, an opportunity to defend against the charges and sufficiently impartial adjudication.

That distinction matters in Bernacchi’s case. He has long maintained that material testimony and evidence weren't adequately considered during his disciplinary proceeding and that the procedures available to him prevented a meaningful presentation of his defense. Those assertions remain allegations to the extent they aren't established by the underlying orders and transcripts. But they frame precisely the institutional issue now raised from another direction by Indiana’s attorney general: What happens when the lawyer says the disciplinary machinery itself is the constitutional problem?

Rokita’s prominence makes the question difficult to ignore. If Indiana’s chief legal officer can seek federal protection from an allegedly abusive disciplinary system, lawyers who previously challenged that same institutional structure are entitled to ask what distinguishes their cases.

The Bernacchi Comparison (not single out his case there are many errors, but HE has investigated his case in detail and it needs review, too.)

Bernacchi’s disciplinary battle eventually reached federal court after Indiana suspended him from practicing law. The Southern District of Indiana imposed reciprocal discipline, and the Seventh Circuit affirmed in 2018. Federal judges afforded substantial weight to Indiana’s disciplinary determination and concluded that Bernacchi hadn't demonstrated deficiencies sufficient to prevent reciprocal federal discipline.

Rokita now approaches the federal courthouse from a different procedural direction. He has brought an independent federal action challenging aspects of Indiana’s disciplinary system rather than merely contesting reciprocal federal discipline. That distinction could prove legally decisive. Different causes of action, defendants, procedural postures and requested remedies can legitimately produce different results.

But that shouldn't end the inquiry. If Rokita obtains federal consideration of constitutional objections that Bernacchi and other Indiana attorneys couldn't successfully bring before federal judges, the courts should identify the legally material distinction. Different outcomes aren't evidence of unequal justice when different laws apply, but unexplained differences involving the same disciplinary establishment inevitably invite scrutiny.

The same caution applies to Equal Protection arguments. It isn't enough to show that Bernacchi was suspended while a disciplinary proceeding against Rokita ended differently. The relevant comparison is much narrower: Did similarly situated attorneys request comparable procedural protections under comparable rules, and were those requests treated differently without a legally sufficient reason?

That is where the records matter more than rhetoric. If Bernacchi requested a particular opportunity to present testimony or evidence and was denied it, while Rokita received a materially equivalent procedural accommodation under comparable circumstances, the reason for that difference deserves examination. If legitimate distinctions explain the outcomes, they should be identified. If they don't, the constitutional questions become considerably harder for Indiana’s disciplinary establishment to dismiss.

The Federal Roadblock

Rokita also confronts a Supreme Court precedent almost tailor-made for disputes involving lawyer discipline. In Middlesex County Ethics Committee v. Garden State Bar Association, (US 1982), the U.S. Supreme Court applied principles of Younger abstention to attorney discipline, emphasizing both a state’s substantial interest in regulating lawyers and the availability of the state disciplinary process for presenting constitutional objections.

That precedent could become a significant obstacle if Rokita is asking a federal judge to interfere with a qualifying Indiana disciplinary proceeding that remains underway. The doctrine rests in part on the premise that state disciplinary proceedings provide an adequate forum in which lawyers can raise constitutional objections. Rokita therefore faces a potential paradox if he argues that Indiana’s disciplinary process can't adequately protect the very constitutional rights federal courts ordinarily expect lawyers to assert there.

There are exceptions involving circumstances such as bad faith and harassment, and allegations of retaliatory investigations could conceivably implicate those doctrines. Federal courts, however, construe such exceptions narrowly. An allegation that regulators acted improperly isn't by itself enough to overcome abstention.

Timing could prove equally important. Younger generally concerns federal interference with ongoing qualifying state proceedings. If the particular disciplinary proceeding at issue had already concluded before Rokita filed his federal action, the analysis changes substantially. Other doctrines—including immunity, preclusion and limitations on federal review of state-court judgments—could still present formidable obstacles, but the federal court would have to address the case actually before it rather than mechanically invoking deference to attorney discipline.

A Rush-Era Test of Institutional Power

That brings the controversy back to Rush and the structure over which the Indiana Supreme Court presides. Calling the episode a “power flex” is an interpretation, not an established fact about the chief justice’s motives. The institutional facts nevertheless warrant scrutiny: Indiana’s highest court establishes disciplinary rules, exercises ultimate authority over sanctions and sits at the top of a system whose actions lawyers may ultimately ask that same judiciary to review.

Centralized authority over the bar is hardly unique to Indiana. What matters is whether sufficient checks accompany that authority. Transparent procedures, meaningful evidentiary rights, consistent treatment and an avenue for constitutional review shouldn't weaken attorney discipline. They should make disciplinary decisions more credible.

That is why the Rokita case matters beyond the attorney general. Indiana needs a disciplinary commission capable of pursuing powerful lawyers without political intimidation, just as lawyers need protection from arbitrary or retaliatory disciplinary action. Those principles aren't competing interests. A credible professional-regulation system requires both.

The irony is that Rokita, after previously emerging from a disciplinary proceeding without the sanction some critics sought, is now attacking the disciplinary establishment in federal court. Bernacchi and others have argued for years that the same system lacked sufficient checks on its authority. Whether those earlier criticisms were legally meritorious is a question for the records, but Rokita’s lawsuit makes it harder for Indiana’s legal establishment simply to dismiss the underlying concern.

Todd Rokita is entitled to constitutional due process. So was Doug Bernacchi, and so is every lawyer practicing in Indiana. If the federal courts ultimately reject Rokita’s claims under the same principles of deference that defeated earlier challenges, the result will reinforce the formidable independence of state attorney discipline. If his case proceeds where others couldn't, the legal reasons for that distinction deserve particular attention.

For Indiana, that may be the most consequential part of the Rokita fiasco. The dispute isn't merely about whether the attorney general crossed an ethical line or whether the Disciplinary Commission overreached. It is becoming a test of whether a system entrusted with enormous authority over lawyers also possesses adequate checks on its own power—and whether those checks operate the same way when the lawyer challenging the system happens to be the attorney general.

As you can see the Hoosier Enquirer is going to cover this huge story until it is picked up locally and nationally.